Clotz v. MobileHelp, LLC
| Decision Date | 08 May 2023 |
| Docket Number | 1:22-cv-02059-PAB |
| Parties | TERRY CLOTZ, individually and on behalf of all others similarly situated, Plaintiff, v. MOBILEHELP, LLC, a Florida company, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
This matter is before the Court on Defendant MobileHelp, LLC's (“MobileHelp”) Motion to Dismiss Complaint and to Compel Arbitration (Doc. No. 11), to which Plaintiff Terry Clotz (“Mr. Clotz”) filed a Brief in Opposition (Doc. No. 12), MobileHelp filed a Reply in Support (Doc. No 15), and Mr. Clotz filed a Surreply (Doc. No. 18).
For the following reasons, the Court defers ruling on MobileHelp's Motion until the completion of an evidentiary hearing set for 9 a.m. on August 4, 2023.
On November 15, 2022, Mr. Clotz filed a class action Complaint against MobileHelp that alleged a single violation of 47 U.S.C. § 227, the Telephone Consumer Protection Act (“TCPA”). (Doc. No. 1.) In the Complaint, Mr. Clotz asserts that he registered his residential phone number with the National Do Not Call Registry on January 27, 2018. (Id. at ¶ 14). Yet, on July 18, 2022, he received a pre-recorded call from MobileHelp. (Id. at ¶ 15.) Mr. Clotz brought his action under Federal Rules of Civil Procedure 23(b)(2) and (3), and he seeks certification of a class of all persons in the United States who received a similar pre-recorded call from MobileHelp in the last four years. (Id. at ¶ 24.)
On January 6, 2023, MobileHelp filed the instant Motion to Dismiss Complaint and to Compel Arbitration. (Doc. No. 11.) MobileHelp asserts that Mr. Clotz visited two websites where he consented to being contacted by MobileHelp (and others) via pre-recorded phone calls. (Doc. No. 11 at pp. 2, 3.) MobileHelp also asserts that Mr. Clotz agreed on those sites to arbitrate the present case. (Id.) In support of these assertions, MobileHelp appended the Declaration of Joseph Barreca[1]and the Declaration of Troy Oldroyd.[2] (See J. Barreca Decl. (Doc. No. 11-5); T. Oldroyd Decl. (Doc. No. 11-4).)
Mr. Barreca avers that on February 5, 2021, Mr. Clotz visited www.unclaimed-moneysearch.com. (Barreca Decl. at ¶¶ 6, 7.) According to Mr. Barreca, Mr. Clotz entered his name and phone number on the site and checked a box that indicated, “By checking this box I agree to the Privacy Policy, Terms & Conditions, and to receive relevant, daily email from UnclaimedMoneySearch and Fortifynance.” (Id. at ¶ 9.) Above the check box was a disclaimer that provided in relevant part:
By checking the box below I consent to be contacted by telephone by any of our Marketing Partners, which may include artificial or pre-recorded calls and or text messages, delivered via automated technology to the phone number(s) that I have provided above including wireless numbers even if I am on a federal or state do not call registry, if applicable regarding financial, senior, energy, medicare, home, travel, health, and insurance products and services.
(Id.) MobileHelp was listed as one of the “Marketing Partners.” (Id. at ¶ 8.). Near the check box was a link to the “Terms & Conditions.” (Id.) Clicking on that link would have opened another tab or window with those terms and conditions. (Id. at ¶ 10.) The terms and conditions include the following paragraph:
)
According to Mr. Oldroyd, on July 15, 2021, Mr. Clotz visited another website named money.advanceplatinum.com. (Oldroyd Decl. at ¶ 7.) Mr. Oldroyd claims that Mr. Clotz entered his name, zip code, email, phone number, and date of birth. (Id. at ¶ 10.) Mr. Clotz purportedly clicked a box marked “Get Approved!” with a disclaimer that provided, “By checking this box, I agree to: Privacy Policy and Terms of Service from Advance Platinum and CreditCardCommittee.” (Id. at ¶ 8.) Near this box was a similar link that would take the user to this site's terms and conditions, which had an identical governing law and arbitration provision as www.unclaimed-moneysearch.com. (Id. at ¶ 9.)
On February 2, 2023, Mr. Clotz filed an Opposition to MobileHelp's Motion to Dismiss Complaint and to Compel Arbitration. (Doc. No. 12.) Mr. Clotz attached a document titled “Affidavit of Terry Clotz” to his Opposition. (See T. Clotz 1st Affidavit (Doc. No. 12-1).) Mr. Clotz's purported affidavit was not notarized and did not include all the language for an unsworn declaration as required by 28 U.S.C. § 1746. (Id.) On February 24, 2023, MobileHelp filed a Reply in support of its Motion, challenging, in part, the validity of Mr. Clotz's affidavit. (Doc. No. 15, pp. 2, 3.) On April 26, 2023, the Court issued an Order permitting Mr. Clotz to file a surreply limited to addressing the validity of his purported affidavit. (Doc. No. 17.) On May 3, 2023, Mr. Clotz filed a surreply with a second, notarized affidavit attached. (See Doc. No. 18; T. Clotz 2nd Affidavit (Doc. No. 18-1).) In the second affidavit, Mr. Clotz avers that he never visited the websites www.unclaimed-moneysearch.com and money.advanceplatinum.com. (Clotz 2nd Aff. at ¶¶ 4, 9.)
MobileHelp motions this Court to compel arbitration and to dismiss this case under § 4 of the Federal Arbitration Act (“FAA”). (Doc. No. 11 at p. 1.) It argues that Mr. Clotz visited www.unclaimed-moneysearch.com and money.advanceplatinum.com and entered into two identical and valid arbitration agreements. (Id. at pp. 2-3.) MobileHelp contends that it is a named third-party beneficiary of those arbitration agreements. (Id. at p. 12.) And, finally, it asserts that Mr. Clotz's present TCPA claim falls within the scope of the arbitration agreements. (Id. at p. 13.) In the alternative, MobileHelp asks this Court to compel arbitration and to stay the proceedings under § 3 of the FAA. (Id. at p. 14.)
In his Brief in Opposition, Mr. Clotz argues that this Court cannot compel arbitration because the Parties never agreed to arbitrate. (Doc. No. 12 at p. 5.) In both his first and second affidavits, Mr. Clotz denies ever visiting the two websites in question. (Clotz 1st Aff. at ¶¶ 4, 9.) (Clotz 2nd Aff. at ¶¶ 4, 9.) Because of this denial, he argues that the formation of the arbitration agreement is “in issue.” (Doc. No. 12 at p. 5.) As such, he contends that the Court should either deny MobileHelp's motion or grant him leave to conduct limited discovery under Federal Rule of Civil Procedure 56(d). (Id. at pp. 5-6.)
In its Reply, MobileHelp argues that Mr. Clotz's first affidavit is invalid. (Doc. No. 15 at pp. 3-4.) And even if the Court finds the affidavit valid, MobileHelp contends that the affidavit “fails to put the formation of an arbitration agreement in issue.” (Id. at p. 6.) Finally, MobileHelp argues that it is a third-party beneficiary of the arbitration agreement whether the Court applies Texas or Ohio law. (Id. at pp. 7-9.)
In his Surreply, Mr. Clotz attached a second affidavit. (See Clotz 2nd Aff.) But he also argues that his first affidavit was valid. (Doc. No. 18 at pp. 1-2.) The Court disagrees. Mr. Clotz's first affidavit did not qualify as an affidavit as it was not sworn before a notary public. See Sfakianos v. Shelby Cty. Gov't, 481 Fed.Appx. 244, 245 (6th Cir. 2012) (citation omitted) (“an affidavit is a ‘sworn statement in writing made . . . under an oath or affirmation before . . . an authorized officer'”). And it did not qualify as an unsworn declaration under 28 U.S.C. § 1746(2) because it was missing words to the effect that “the foregoing is true and correct.” See Pollock v. Pollock, 154 F.3d 601, 611 n.20 (6th Cir. 1998) ().
The Court finds, however, that Mr. Clotz's second affidavit is valid. The second affidavit is identical to the first except that it adds the statement “the foregoing is true and correct,” and it is notarized. (See Clotz 2nd Aff.) Therefore, the second affidavit qualifies both as a conventional affidavit and as an unsworn declaration under 28 U.S.C. § 1746(2).
Section 4 of the Federal Arbitration Act provides that:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.
9 U.S.C. § 4. Section 4 also provides, however, that “[i]f the making of the arbitration agreement . . . be in issue, the court shall proceed summarily to the trial thereof.” (Id.)
The standards of Federal Rule of Civil Procedure 56 “govern whether a court should hold a trial under § 4 when a party alleges that no contract exists.” Boykin v Family Dollar Stores of Mich., LLC, 3 F.4th 832, 836 (6th Cir. 2021), see also Fed.R.Civ.P. 81(a)(6)(B). Because MobileHelp is the party asserting the arbitration agreement's existence, under Rule 56 it has the initial burden “to produce evidence that would allow a reasonable jury to find that a...
To continue reading
Request your trial